In re the Claim of Spencer , 920 N.Y.S.2d 454 ( 2011 )

Peters, J.P.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 2, 2010, which, upon reconsideration, ruled that claimant was entitled to receive unemployment insurance benefits.

The present appeal is the third occasion that this matter has been before us, and the facts are more fully set forth in our prior decisions. Briefly, we affirmed a decision of the Unemployment Insurance Appeal Board holding that claimant had been discharged from his employment for disqualifying misconduct and was not entitled to unemployment insurance benefits (Matter of Spencer [Commissioner of Labor], 22 AD3d 1010 [2005], lv denied 7 NY3d 701 [2006]), and thereafter upheld the Board’s refusal to reopen that decision (Matter of Spencer [Commissioner of Labor], 49 AD3d 1047 [2008]). Claimant again sought to reopen the Board’s decision in 2009, submitting evidence that had not previously been before the Board. Upon its own motion, the Board reopened its earlier decision and, following a hearing, held that claimant had not been discharged for disqualifying misconduct and awarded benefits. The employer appeals.

It is well settled that the Board has continuing jurisdiction to reopen a matter on its own motion in order to consider previously undisclosed evidence, even if a party’s application to reopen would be untimely, and we perceive no abuse of discretion in its decision to do so here (see Labor Law § 534; 12 NYCRR 463.6 [b]; Matter of Haberstroh [Commissioner of Labor], 251 AD2d 932, 933 [1998]). Contrary to the employer’s contention, the Board was free to reassess claimant’s entitlement to benefits, despite this Court’s affirmance of its previous decisions, if “sufficient facts were presented to” justify it doing so (Matter of Di Donato v Rosenberg, 256 NY 412, 418 [1931]; see Labor Law § 534; Matter of Adams v Owens Corning Fiberglass, 288 AD2d 645, 646 [2001]).

Turning to the merits, the incident that precipitated claimant’s discharge was his disregard of an alleged directive to process and deliver payroll checks by a certain time (22 AD3d at 1010). The employer’s controller testified that he had issued that directive, but stated in a previously undisclosed affidavit that he only directed claimant to deliver the checks “as soon as he was done processing them.” The controller additionally asserted that, after later learning that the checks had not been delivered, he told claimant to deliver some of them as soon as possible. In light of the controller’s conflicting statements, the Board credited claimant’s testimony that he was not directed to have the checks ready by any specific time and was only told to deliver the checks after processing them, which he did. Moreover, even the controller admitted that checks he allegedly directed claimant to deliver as soon as possible were delivered within a half hour of that direction, and there is no indication that the employer was harmed by any delay. Substantial evidence thus supports the Board’s determination that claimant’s behavior, while perhaps the result of poor judgment, did not evince “a willful and wanton disregard of the employer’s interest” rising to the level of disqualifying misconduct (Matter of Wrzesinski [Roberts], 133 AD2d 884, 885 [1987]; accord Matter of Pfohl [Hunter’s Hope Found., Inc.—Commissioner of Labor], 9 AD3d 729, 730 [2004]).

Lahtinen and McCarthy, JJ., concur.